City of Chicago v. Zitny, 199 Ill. App. 585 (1916)

June 19, 1916 · Illinois Appellate Court · Gen. No. 22,188

199 Ill. App. 585

City of Chicago, Defendant in Error, v. Charles Zitny, Plaintiff in Error.

Gen. No. 22,188.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in this court at the March term, 1916.

Affirmed.

Opinion filed June 19, 1916.

Statement of the Case.

Prosecution by the City of Chicago, plaintiff, against Charles Zitny, defendant, for the violation of a municipal ordinance in selling or giving away intoxicating liquor without a license. From a judgment for plaintiff, defendant brings error.

Defendant waived a trial by jury under a complaint charging him with violating section 1539 of the Eevised Municipal Code of Chicago, in that he, on the 26th day of December, 1915, at the City of Chicago, “did then and there sell or give away in quantities less than one gallon of spirituous or intoxicating liquor without first procuring'a license to sell the same.” The trial judge after hearing all the evidence proffered found the defendant guilty and punished him by the infliction of a fine of fifty dollars, placing upon him the costs of the prosecution and ordering his confinement in the House of Correction until such fine and costs were paid or worked out in such House of Correction at the rate of fifty cents per day; but in no event was the imprisonment to continue for a space of time exceeding six months.

Defendant was the keeper of a restaurant. At three o’clock in the morning of December 26, 1915, defendant’s restaurant was open and many persons of both sexes were found patronizing it. In certain cups of coffee rum was present. In the kitchen of defendant was found a jug of rum. These incriminating circumstances were not denied. Defendant attempted to explain the presence of the rum upon the theory that one of the customers had a bottle of rum and without the knowledge, consent or connivance of defendant, poured some, of it into his own coffee and that of the others there present.

Otto L. Kolar, for plaintiff in error.

Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.

* See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Evidence, § 10 ^* —judicial notice of ordinance. A trial court must take judicial notice of a municipal ordinance.

2. Municipal Court of Chicago, § 39 *^when presumed that ordinance violated as charged in complaint. It will be presumed on appeal from a judgment of conviction for the violation of a municipal ordinance, where such ordinance is not found in the record, that it was proven to have been violated as charged in the complaint.

3. Municipal Court of Chicago, § 39*—when finding of trial judge in prosecution for violation of ordinance not disturbed. The finding of a trial judge in a prosecution for the violation of a municipal ordinance will not be disturbed as against the weight of evidence where it appears that his finding is sustained by credible evidence appearing in the record.